Internal Market Rationality, Private Law and the

Direction of the Union: Resuscitating the Market as the

Object of the Political

Marija Bartl
Content
I. INTRODUCTION ................................................................................................................................ 2
II. THE REIFICATION OF POLITICAL ACTION IN THE EU: The Emergence of Internal Market
Rationality.. ...................................................................................................................................... 3
III. INTERNAL MARKET RATIONALITY AND THE TRANSFORMATION OF SUBSTANTIVE LAW: The
Example of European Private Law .................................................................................................... 9
A Transformation of Private Law ................................................................................................... 9
3.1. The Normative Basis of Private Law: From Justice to Low Prices ........................................... 9
3.2. From a Subject to a Vehicle: One Dimensional Consumer ................................................... 11
3.3. Regressive Redistribution ..................................................................................................... 13
3.4. Justice as Access to the Markets ........................................................................................... 17
B Resistance to the Transformation of Private Law .................................................................... 19
IV. THE MECHANISMS OF REIFICATION OF INTERNAL MARKET RATIONALITY .................................. 20
4.1. The Role of the European Commission: Why We Need the Politicisation of Goals in the EU. . 21
4.3. Consultation Procedure ............................................................................................................ 23
4.4. The Role of the European Parliament ....................................................................................... 24
4.5. The Role of the Council of European Union .............................................................................. 27
V. CONCLUSION .................................................................................................................................. 28

ABSTRACT

This paper proposes a concept of internal market rationality for the analysis of the political,
legal and economic consequences of European integration. Internal market rationality refers
to a specific pattern of political action in the field of the Internal Market, which has emerged
gradually due to the concatenation of three main factors: first, the EUs functional

Marija Bartl is a Lecturer at the University of Amsterdam, The Centre for the Study of European Contract
Law, and a researcher within the project The Architecture of Postnational Rulemaking. I would like to thank
Leone Candida, Rnn Condon, Aukje van de Hoek, Martijn Hesselink, Pavel Kol, Leo Specht, Horatia Muir
Watt, the participants of the IGLP Writing Workshop and, finally, Agustin Menendez and two anonymous peer
reviewers for their invaluable comments on the earlier drafts of this paper. All remaining errors are mine.

1

institutional design, second, the processes of post-national juridification and third, a more
contingent influence of ideas. In the interplay of those three factors, the interpretation of
the Internal Market in the EU law and policy making has become over-determined (too
many assumptions as to what the Internal Market is and what it needs), restricting
thereby the role of democratic politics in the shaping of the Internal Market. This reification
of internal market rationality has had a direct influence on the content of European law, as I
demonstrate through the example of European private law. Internal market rationality has
transformed the very concept of justice underpinning private law, the concept of the person
or subject of law, the (re)distributive pattern of private law, and the normative basis on
which private law stands. I argue, finally, that a close examination of the legal, institutional
and ideological arrangement behind what is referred to as internal market rationality
provides clues for the democratisation of the EU.

I. INTRODUCTION

This article advances a new concept that of internal market rationality - to explain how the
key aim of European integration, the establishment of the internal market, has come to
shape both the substance and processes of private law-making in Europe today.

The processes of economic liberalisation and privatisation that followed the Single European
Act have increased the centrality of private law in the EU. Private law has become the
principal juridical framework for a growing number of social and economic relations. Yet,
the more the EU has boosted the role of private law, the more it has transformed or
distorted - its internal normativity.

Posing the construction of the Single/Internal Market as the key task of private law has
transformed radically its key tenets: the concept of justice underpinning private law, the
concept of the person or subject of law, the (re)distributive pattern of private law, and the
normative basis on which private law stands. While the transformation might have been
invigorated by neoliberal thought, I argue that a fundamental role has been played by the
original ambivalence of the European integration project, and most particularly, by its
institutional and substantive functionalism.

In the following section (Part II), I propose a theoretical framework for understanding the
processes of reification of political action in functionalist entities. I explore how the
confluence of EU legal-institutional arrangements and a broader ideological constellation
made the emergence and the reification of internal market rationality possible. The
subsequent section (Part III) analyses the implications of internal market rationality for the
transformation of European law. I seek to demonstrate that internal market rationality has
fundamentally transformed the very idea of private law. The final section (Part IV)

2

investigates a particular division of labour among the EU institutions, as an unexpected
consequence of EU functionalist institutional design. While this division of labour among the
EU institutions has been pivotal to the ongoing reification of political action in the EU, it may
at the same time hold the seeds for its containment.

II. THE REIFICATION OF POLITICAL ACTION IN THE EU: The

Emergence of Internal Market Rationality

I understand internal market rationality as a specific pattern of political action in the EU -

EUs political rationality. Internal market rationality may be said to comprise various
normative and cognitive (knowledge) components, such as laws, values, principles,
common sense, economic doctrines, political expediency, responses to public opinion,
policies, or notions of human rights.1 These elements lend the structure to the field of
possible political action in the EU and provide language for conducting policy debates.

In a functionalist entity of economic integration, such as the EU, the primary normative
component of political action has been supplied by its economic purpose: the construction
of the common / internal market. This European goal has in turn motivated the production
of an enormous body of knowledge, which has, over time, supplied the cognitive foundation
of its political rationality.

Yet, while we understand rationality and knowledge are positive notions, which should
enable political institutions to act in a normatively desirable rational way, I will be interested
here in a certain pathogenic interaction between politics and knowledge production in
functionalist entities, captured by the term reification.

As an example of the reification in the EU, in Part IV I discuss the way in which the main goal
of European private law the online internal market - has been established. In this process
of European private law-making, the relationship between the online internal market and
other EU goals (such as economic growth or employment) has not been an issue of political
debate. Instead, the desirability of the goal of online internal market has been assumed.
Such shortcuts (assumptions), which replace political debate with regard to what the
internal market is and what it needs, can be ascribed to the reification of political action in
the field of the internal market, ie. the reification of EUs internal market rationality.

The concept of reification thus embraces those conditions and mechanisms that facilitate
the emergence of isles of uncontested knowledge (assumptions) in the EU policy and law
making, which substitute political debate on socially and economically salient matters. It is
simply obvious that the EU, whose main function is to build the internal market, should

1
M. Beeson and A. Firth, Neoliberalism as a Political Rationality, 2.

3

also create the online internal market. Yet such de-politicisation of EU goals qua settled
knowledge (assumptions) both restricts the space for democratic determination of what
kind of Internal Market Europeans want and constrains the possibility to control for the
possible mistakes (biases) in those assumptions, which may in turn translate unhampered
into the EU law.

To unpack the reasons for the reification of the EU political action in recent decades, such as
the previously mentioned case of online internal market, we need to understand, first, the
relation between governance and knowledge in general, and second, the role of the EU
institutional structures for the production of knowledge in particular. The cornerstone of my
theoretical account is the idiom of coproduction developed in Science and Technology
Studies.2 As an analytical tool, the idiom of co-production suggests that the relationship
between governance and knowledge is one of dependence, when the two co-produce each
other in a dynamic and co-evolutionary fashion.3

For example, from the beginnings of EU integration, the EU institutions needed to interpret
what they ought to do: what the common market is and what the common market
needs.4 This demand for the interpretation of the internal market prompted a production of
knowledge (reports, impact assessments, policy documents, expert opinions, consultations,
euro-barometers etc.),5 which helped to identify the problems in the internal market (for
instance, what is a barrier to trade or what constitutes a transaction cost6) and suggests
possible solutions (harmonisation, learning, empowerment and so on).
The accumulated knowledge regarding the needs of the internal market, however, has not
been separate from the objectives that motivated the production of that body of knowledge
in the first place. Rather, it has been infused with certain normative proclivity toward the
positive articulation of EU objectives: we will find, for instance, little knowledge produced in
the EU that does not commend market integration.7 The process of coproduction of
knowledge and governance is in addition circular: just as the normative objectives infuse
knowledge, so does the accumulated knowledge, both cognitively and normatively, shapes
the creation of new normative objectives.8
Without contestation, the processes of co-production of knowledge and governance will
result in the reproduction and spread of bias present in either knowledge or the normative

2
Sheila Jasanoff, States of Knowledge: The Co-Production of Science and Social Order, (2004, Routledge).
3
Ibid, 2-4.
4
In different words, why, when and how to intervene in the market.
5
The production of knowledge as a response to a certain goal may be seen as one side of the co-production
cycle. The production of new normative objectives, on the basis of accumulated knowledge, is the other side
of the co-production cycle.
6
A.T.F. Lang, 'Reconstructing Embedded Liberalism: John Gerard Ruggie and Constructivist Approaches to the
Study of the International Trade Regime,' (2006) 1 Journal of International Economic Law.
7
See also A.L.S. Clair, Global Poverty The Co-Production of Knowledge and Politics, (2006) 6 Global Social
Policy.
8
Jasanoff, States of Knowledge, 4.

4

objectives that motivate its production. Likewise, where the objectives behind the
knowledge production remain unchallenged, their political disposition will over time imprint
deeply into the body of knowledge produced on their impulse, which will at the same time
become more formalised (i.e. the emergence of assumptions).
The reification of political action (governance qua knowledge) in political communities is
made possible provided that two legal - institutional conditions are present:
a) the (de-)politicisation of material goals of a polity (to which I refer here as the
process of (postnational) juridification)9 and
b) the (de-)politicisation of institutions producing knowledge.
The original functionalist legal institutional design of the EU, oriented toward the
technocratic execution of uncontroversial goals,10 importantly impacts on the realisation of
either of these two conditions. At the same time, this is not to say that the functionalist
design alone has been a sufficient condition for the reification of the EU political rationality.
Rather, we need to advance a non-essentialist account, which will consider both the role of
time and ideas.
Designing the EU as a functionalist entity required the juridification of certain substantive
political choices. Even if not determinative on its own, such constitutionalisation influences
the level of contestation of normative objectives in functionalist entities.11 First, the higher
density of juridification constrains the use of language. Thus the EEC/EU Treaties have
introduced the core concepts like common/internal market or free movement, setting a
linguistic framework in which the EU political rationality could develop over time.
This linguistic framing becomes particularly important in the light of the system of EU
competences, which offer legal basis for the EU action. For instance, through out the

9
See also an excellent contribution by T. S. Veitch, Juridification, Integration and Depoliticisation, In D.
Augenstein (Eds.), Integration through Law Revisited: The Making of the European Polity, n.d. (Ashgate
2012).
10
In international relations, functionalism denotes an approach to international cooperation, which seeks to
overcome the worlds division by means of cooperation in relation to practical goals and problems. In contrast
to international power politics, this cooperation should take place within technocratic international
institutions. The design of the European Economic Community was guided by some of these functionalist
ideas, which emerged in the interwar period (Mitrany) and were politically very influential after the horrors of
the Second World War. The function of the Communities was to build a common market within which the
economic interdependence of the European states should serve peace on the continent.
Yet, even if the Communities / the EU have gradually enlarged the scope of its purpose, it has not freed itself
entirely from this functionalist legacy, which remains imprinted in some of the original institutional choices.
For instance, the institutional design of the EU government (the European Commission) is premised on the
possibility of uncontroversial common goals, insofar as these are established through expertise. The same
fallacy is also a thread in the EU legal order: it underlines for instance the principle of subsidiarity directed at
comparative efficiency, which presupposes that it is means rather than goals that are controversial. The same
fallacy underlines the institutionalisation of EU competences, as recently discussed by Gareth Davies.
While this paper does not argue that the EU functionalist legal-institutional design determines the EU action in
any exhaustive way, we need to avoid both the trap of essentialism and the entire disregard of phenomenon
when investigating the EU governance today.
11
The more positivist attitude one adopts, the more trust one places in the power of law to constrain political
action, the more prone one would be to accept this proposition.

5

existence of the EU, most its legislation has been enacted pursuant to the internal market
legal basis. Yet the reliance on this legal basis, as Davies has recently argued, comes at
price.12 The clear-cut added value of the EU in building the internal market gives an
incentive to the EU institutions to translate various social problems into internal market
language, bringing them thus into the normative and cognitive domain of the Internal
Market.13
Second, and perhaps the most important effect of juridification in functionalist entities, is
the existence of thin set of normative and causal beliefs, which justify the existence of the
functionalist entity itself. Thus in the EU, which has emerged as an entity of economic
integration, such a thin interpretative layer relates to the constitutive belief in the mutually
beneficial character of market integration, free movement and competition.14 This
normative layer is on its own not capable of steering the interpretation of the EU main
purpose in any conclusive way. Yet, as I argue further below, it may predispose the EU to be
more open to some ideas rather than other ideas.
Despite the aforementioned legal constraints on political action, the EU has over time
created a set of democratic institutions, where the EU governance could be politically
constructed and contested. It is in this political space that the EU citizens, through EU
institutions, should be able to set the conditions in which they want free movement,
competition or market integration to take place. It is here that they should be capable of
deciding that they want a particular kind of internal market: the one with the highest level
of labour protection or, to the contrary, with no protection at all. Without constraining this
institutional space for the politicisation of EU objectives, the reification of political action in
the EU would be less probable.
Yet, the functionalist institutional design has been deliberately directed at the
depoliticisation of EU goals.15 The most important institutional choice was to designate a
technocratic institution European Commission - as responsible for both the articulation of
EU normative objectives (the guardian of EU interest) and as a main producer of
knowledge in the EU. The Commissions institutional technocratic design, premised on the
separation of knowledge and politics, depoliticises the setting of EU goals (EU interest).
Moreover, it also gives the European Commission an incentive both to marginalise the

12
Gareth Davies, Democracy and Legitimacy in the Shadow of Purposive Competence, European Law
Journal, 2014.
13
Davies has recently argued that the political fixation of EU goals through the system of competences has a
depoliticising effect. Davies suggests that purposive competence deprives the EU political processes from
essential choices of direction, divests it from expressive qualities and ultimately endangers the EU social
legitimacy. G. Davies, Democracy and Legitimacy in the Shadow of Purposive Competence, (2014) European
Law Journal.
14
See also D. Kukovec, A Critique of the Rhetoric of Common Interest in the EU Legal Discourse, SSRN Scholarly
Paper, (2012).
15
J. Steffek, Tales of Function and Form, Normative Orders Working Paper, 2014. Accessible at
http://publikationen.ub.uni-frankfurt.de/files/19795/steffek_tales_of_function_and_form.pdf.

6

political and contentious character of knowledge and to frame salient political issues as
merely technical ones.16
An unexpected, yet equally important institutional consequence of the EU functionalist
design is the way in which it impacts on the democratic self-understanding of the EU
political institutions. As I discuss in part IV, these often apprehend their role less as that of
directing the development of the polity by constructing and contesting goals and objectives
and more as supervising the effectiveness of proposed laws and policies, or arbitrating
between various interests within the framework of a proposal. This functionalist self-
understanding, which distinguishes for instance the European parliament from its member
states counterparts, permits the reification of EUs political (internal market) rationality.17
Finally, it was only with the emergence of a relatively comprehensive set of harmonic ideas
that we become able to discern the reificatory potential of the (EUs) functionalist legal -
institutional design in the context of economic integration.18 Such intellectual framework of
reference has been supplied by (analytically admittedly rather blurred) body of thought
referred to as neo-liberalism.19 Neoliberalism has contributed to the reification of internal
market rationality in a three-fold manner. First, it has offered a set of ideas harmonious with
the basic causal and normative beliefs behind the EU economic integration (the mutually
beneficial character of market building), thus it seemed to further the EU cause. Second,
neo-liberalism has also made available a convincing language to justify the need for the
growth of the EU regulatory powers through market creation and market deepening.20
Finally, this body of thought buttressed the Commissions search for technocratic modes of
legitimation.21
The stimulus for the incorporation of neo-liberal thought into the cognitive structures of the
internal market rationality stemmed from several political endorsements of these ideas at a
macro-political level. The foundational moment was the White Paper on Completing the

16
Brueggemeier et al., Social Justice in European Contract Law.; B. Kohler-Koch, How to Put Matters Right?
Assessing the Role of Civil Society in EU Accountability, (2010) 33 West European Politics.
17
Even in cases where we see such politicisation such as the one we have seen with the Services Directive
this may not be sufficient to prevent reification provided that a growing mass of assumptions is still
reproduced in the EU political processes. Whether this is the case is an empirical question, which goes beyond
the scope of this article. What part IV shows, however, is that this self-understanding of EU political
institutions prepares ground for such reproduction and the impending reification of EU political action.
18
One has to be reminded at this place of the visionary work of Friedrich Hayek on the dynamics of economic
international integration. F. Hayek, 'The Economic Conditions of Interstate Federalism', in F.Hayek,
Individualism and Economic Order, Ch. 12 (University of Chicago Press, 1948).
19
Neo-liberalism is a term coined to designate a set of economic, social and political ideas associated with San
Montpellerini society, the Chicago school, Washington consensus and the ideas underlying Teachers and
Reagans governments in the UK and the US respectively. See for instance David Harvey, A Brief History of
Neoliberalism (Oxford University Press, 2005).
20
The promotion in the European Commission is often distributed on the basis of projects completed by its
various members.
21
The Commission has increasingly relied on the economic analysis in its policy making, which promises a
formal constraint on the exercise of public power. See influential C. R. Sunstein, 'Congress, Constitutional
Moments, and the Cost-benefit State,' (1996) Stanford Law Review .

7

Internal Market, and its political follow up the Single European Act, which represented the
Internal Market as a single, grand technical project. They shored up the need for the
technocratic governance of the Internal Market and strengthened the dominance of the
Commission over its interpretation. The Maastricht Treaty, in fleshing out the concept of the
Monetary Union, juridified proper monetary and fiscal policies. The Lisbon Strategy, a
response to the uncontrollable global market, presented the latter as a natural entity and
competitiveness as the only response to economic globalisation. The current economic crisis
and the accompanying policy of austerity further solidified these naturalistic
representations of market forces: ironically, the social achievements of the Lisbon Treaty,
such as its commitment to full employment and social protection,22 nowadays serve as the
basis for EU economic regulations, which represent the European Commissions role as
apolitical in the enforcement of fiscal discipline and surveillance.23
These political endorsements of neo-liberal ideas were not only constitutive but were also
constituted by previous political decisions and, more importantly, by vast knowledge
produced by the EUs executive. For instance, the role of the EU Commission can hardly be
overestimated in shaping the contours of Single European Act, the follow up of the White
Paper on Completing the Internal Market.24 Even more importantly, these various macro-
political endorsements have been further developed and translated into operative goals and
objectives of the EU as we have already mentioned with regard to the online internal
market - in a depoliticised manner and by giving way to those ideas that justify the
expansion of EU powers through market creation and technocratic governance.
Lastly, the reason why we may consider this institutional, legal and ideological conundrum
to go beyond a simple political choice as we see in so many EU member states today is
three-fold. First, it is the EU institutional design where a technocratic institution is a main
guardian of unequivocal EU interest. Second, the confluence of juridified normative
objectives and the status of the European Commission changes a democratic self-
understanding of EU political institutions, which in many instances do not see themselves as
competent for deciding politically on the direction of a polity. Finally, the creation of the EU
as an entity of international economic integration engenders the receptiveness toward
those ideas that are both in harmony with a thin set of normative and causal beliefs
justifying the EU integration and at the same time can legitimate the expansion of EU
powers.

22
Art. 9 TFEU: In defining and implementing its policies and activities, the Union shall take into account
requirements linked to the promotion of a high level of employment, the guarantee of adequate social
protection, the fight against social exclusion, and a high level of education, training and protection of human
health.
23
The Regulation of the European Parliament and the Council 472/2013, On the strengthening of economic
and budgetary surveillance of member states in the euro area experiencing or threatened with serious
difficulties with respect to their financial stability.
24
See for instance N. Jabko, Playing the Market: A Political Strategy for Uniting Europe, 1985-2005 (Cornell
University Press, 2006).

8

III. INTERNAL MARKET RATIONALITY AND THE TRANSFORMATION
OF SUBSTANTIVE LAW: The Example of European Private Law
In this section I argue that the reification of internal market rationality has an important
impact on the content of European law. More specifically, I will show how it has changed
the very idea of private law. In the first part I identify four major transformations: the shift
in the normative basis of private law, a transformation of the concept of a person, the
regressive patterns of redistribution and finally the transformation of the concept of justice
in European private law. While these transformations occur at a meta level, restructuring
the very rules of the game, their normative strength has been only partially realised in the
concrete rules of European private law due to the various forms of resistance. The second
part turns then to various forms of resistance mounted against the transformation of
private law, discussing both potential and limits of resistance within the current legal-
institutional framework of European private law.

A Transformation of Private Law

3.1. The Normative Basis of Private Law: From Justice to Low Prices
The first transformation of private law that interests us here concerns private laws
normative basis, and in particular its output25 or performance legitimacy.26 What substantive
choices legitimise private law? Upon which values does it stand? While private and contract
law had been associated with the rise of market capitalism,27 from the internal perspective,
the legitimacy of private law rested elsewhere.28 Modern civil codes such as the Code Civil,
ABGB or BGB speak of liberty, emancipation, equality, autonomy, the universal essence of
private law.
From the late nineteenth century onwards, many contested the legitimacy of private law
and the values on which it rested. Private Law was criticised as merely paying lip-service to
both freedom and equality from which it ostensibly took its justification. The state was
complicit in those injustices29 lending the state enforcement (legitimate use of force) to
the enforcement of private arrangements, often appalling from the perspective of social
justice. The claims to neutrality, of a science of law, either of state or of private law,
became unsustainable. As the nineteenth century drew to a close, the state, the public, took
over part of the responsibility for such outcomes.

25
F.W. Scharpf, Governing in Europe: Effective and Democratic? (OUP Oxford, 1999), passim.
26
D. Beetham and C. Lord, Legitimacy and the European Union (Longman London 1998); N. Walker, 'The White
Paper in Constitutional Context, in Symposium: Mountain or Molehill? A Critical Appraisal of the Commission
White Paper on Governance (NYU WP 2001).
27
M. Weber, Economy and Society, New Ed (University of California Press, 1992), 666ff.
28
J. Gordley, The Philosophical Origins of Modern Contract Doctrine (Oxford University Press, 1991), 214.
29
R.L. Hale, Coercion and Distribution in a Supposedly Non-coercive State, (1923) 38 Political Science
Quarterly; R.L. Hale, 'Force and the State: A Comparison of Political and Economic Compulsion,' (1935) 35
Columbia Law Review.

9

Legislators have enacted mandatory private law in structurally unequal relations in order to
balance the material inequality among private parties. The legislation first developed in the
fields of labour law and tenancy law and, after WWII, in consumer law.30 A similar
development also took place in the courts, but in a more individuated fashion through
general clauses.31 This process has been called the materialisation32 of private law, a shift
from form to substance, or the rise of the Social in legal thought.33 A new impetus for the
materialisation of private law came after World War II, with the spread of Human Rights and
the process of constitutionalisation of private law, which have accentuated traditional
private law values and principles giving them a substantive (thick) rather than formal
reading.34
All these processes of democratisation of private law have never amounted to contesting
the normative basis of private law the justification of private law as a body of law focused
on the individual and the individual justice, and the values of freedom and equality. What
has been contested is the realisation of those values within the framework of a particular
interpretation of the market.
The EU however changes this private law narrative. Even if introduced as a social law
aimed to bring the EU closer to its citizens, the central justification of European private law
has been the internal market.35 This is partially a consequence of the reliance on the internal
market legal basis in European contract law,36 in liberalised public utilities where the
markets were directly created37 as well as in the field of EU labour law, where the security of
workers becomes inherent in the proper functioning of the internal market.38
With time, however, the spell of the internal market over European private law has
strengthened.39 There is an important difference in the ethos underlying the Unfair Terms
Directive, written in the 80s and centred on the substantive control of contracts and weaker
parties, as opposed to the Consumer Rights Directive of the late 2000s, concerned with

30
Schmid, Die Instrumentalisierung Des Privatrechts Durch Die Europische Union, 25ff, also H. Rsler, 'The
Transformation of Contractual Justicea Historical and Comparative Account of the Impact of Consumption, in
H. Micklitz, The Many Concepts of Social Justice in European Private Law (Eward Elgar, 2011), 327.
31
Schmid, Die Instrumentalisierung Des Privatrechts Durch Die Europische Union, 28.
32
Weber, Economy and Society, 886.
33
D. Kennedy, 'Three Globalizations of Law and Legal Thought: 1850-2000,' in D. M. Trubek, The New Law and
Economic Development: A Critical Appraisal (CUP 2006).
34
C. Mak, Fundamental Rights in European Contract Law: A Comparison of the Impact of Fundamental Rights
on Contractual Relationships in Germany, the Netherlands, Italy and England, (Wolters Kluwer, 2008) 323.
35
Schmid discusses the transformation of the normative basis of private law as the Instrumentalisation of
private law. See Schmid, Die Instrumentalisierung Des Privatrechts Durch Die Europische Union, passim. For
an English summary see Ch. Schmid The instrumentalisation Thesis in a Nutshell in Ch. Joerges, T. Ralli (eds.)
European Constitutionalism without Private Law - Private Law without Democracy (RECON Report No 14).
36
Eg European Commission, 'Impact Assessment Accompanying the Proposal for a Regulation of the European
th
Parliament and of the Council on a Common European Sales Law, ((COM(2011) 635 final, Brussels, 11 Oct.
2011)), 7.
37
M. Bartl, 'The Affordability of Energy: How Much Protection for the Vulnerable Consumers? (2010) 33
Journal of Consumer Policy.
38
Micklitz, Social Justice and Access Justice in Private Law.
39
D. Caruso, The Justice Deficit Debate in EU Private Law: New Directions".

10

procedural rights and empowering consumers to contribute to the internal market.40 The
traditional private law values of freedom and equality offer ever less reason for action in
European private law, while the arguments for the well-functioning of the internal market
increasingly dominate the normative programme.41 Some commentators have lamented this
process as the expulsion of the concept of protection from consumer law.42

3.2. From a Subject to a Vehicle: One Dimensional Consumer

A parallel development has also taken place with regard to the concept of a person in the
European private law. The Enlightenment and the bourgeois revolutions of the 18th and 19th
centuries brought the idea of private law built around the idea of a person as a free moral
agent.
Jeder Mensch hat angeborne, schon durch die Vernunft einleuchtende Rechte, und ist daher
als eine Person zu betrachten. (ABGB 1811 in Art. 16)

He is rational, self-reliant, mature and responsible, he enjoys civil rights and can bind
himself within the sphere of his private autonomy. Any interference in the private sphere of
the individual by the state is limited and has to be justified, while interference by others is
conditioned by his consent. A shift to the period of the Social onsets the process of de-
differentiation43 typical of the Classical period. Private law tackles the threats to the
foundational values (autonomy and equality) posed by private power and material
inequality.
The EU diverges from this line of conceptualizing the individual in private law:
The civil law has traditionally addressed human beings as persons. In such an approach
matters of contract law are regarded quite naturally as matters of justice in the fullest
possible sense. However, European contract law does not address us as persons who
should be treated with justice nor as citizens who have fundamental rights, but, most of
the time, as consumers. Moreover, as we saw, in the European Union consumer
protection is often regarded as a policy, which is instrumental to the construction of the
internal market. The combination of reducing persons to citizens, citizens to consumers,
regarding the latter as instrumental to market building and moving towards horizontal
and full harmonisation brings us very far away from contract law as a matter of justice.44

40
The potency of the substantive control for ensuring equality in the markets - as opposed to the procedural
rights granted for instance by the Consumer Rights Directive is considerable. See to this effect The Court
and Sleeping Beauty: The Revival of the Unfair Contract Terms Directive (UCTD), (2014) 53 Common Market
Law Review.
41
D. Caruso, The Justice Deficit Debate in EU Private Law: New Directions".
42
Micklitz, The Expulsion of the Concept of Protection from the Consumer Law and the Return of Social
Elements in the Civil Law.
43
For an interesting parallel see H. Rsler, Protection of the Weaker Party in European Contract Law:
Standardized and Individual Inferiority in Multi-Level Private Law, (2008) 18 European Review of Private Law.
44
Hesselink, European Contract Law, 41.

11

A first departure of European private law from the modern private law lies in a novel
objectification of person(s). Private law is no longer directed to persons but rather persons
become vehicles for achieving a greater objective market integration.45 A second
departure from the heritage of social private law in particular, lies in a return to the
dedifferentiated understanding of individuals (itself a phenomena linked to the
consolidation of the market in the industrializing economies of the 19th century), which
seems to take on a renewed importance as a tool for consolidating the internal market.46
There is an important standardising tendency in European private law,47 linked to the
concept of average consumer,48 which deliberately leaves out a material condition of
under-average consumers and prompts a re-formalisation of private law. Likewise the stress
on procedural rights, instead of substantive protection, has ultimately the effect of de-
differentiation among individuals.
A third departure from a modern private law lies in the construction of the internal market
useful subjectivities,49 who shall make informed choices which reward competition and
drive forward the European economy.50 While private law and its subjects have been
instrumentalised for market building purposes in the EU from the start, the pressure for the
construction of subjectivities that are useful for the market, also by means of private law,
has gained currency only with a progressing reification of the internal market rationality
after the Lisbon Strategy.
A telling example may be found in the Impact Assessment study, which accompanied the
proposed Common European Sales Law (CESL). In this Impact Assessment, the European
Commission presents several cases of consumers, who are prevented from shopping online
and thus do not manage to reap the benefits of the internal market. For instance, the
example is presented of a Finnish lady who disregards the advice of her daughter to
purchase shoes cheaper online and still prefers to shop in a high street shop. Such consumer
behaviour is, according to the Commission, unsound since the lady loses out - a situation
that apparently needs to be remedied by investing public funds into the creation of a
Common European Sales Law.
Yet, is the Finnish lady really so irrational in the end? What if the price is not her primary
consideration? Perhaps trying the shoes on, making sure that they feel good, getting a walk
in the city, talking to acquaintances on the way and onsite at the shop can be rationally

45
See also Schmid, Die Instrumentalisierung Des Privatrechts Durch Die Europische Union, passim.
46
H-W. Micklitz & D. Patterson, 'From the Nation State to the Market: The Evolution of EU Private Law' (SSRN
2012).
47
H. Rsler, Protection of the Weaker Party in European Contract Law: Standardized and Individual Inferiority
in Multi-Level Private Law, (2008) 18 European Review of Private Law.
48
H. Unberath and A. Johnston, The Double-headed Approach of the ECJ Concerning Consumer Protection,
(2007) 44 Common Market Law Review.
49
For an excellent analysis of the constitutive role of law for the construction of subjectivities see A.T.F. Lang,
'The Legal Construction of Economic Rationalities?, (2013) 40 Journal of Law and Society.
50
European Commission, Consumer Agenda 2012 - 2014: Boosting Confidence and Growth by Putting
Consumers at the Heart of the Single Market, 2.

12

prioritised. Or the lady may be even concerned with some broader public / citizen
preferences, which the price does not capture (for instance, environmental concerns).
In the post-2000s European private law such presentations of the individual purpose
multiply in the documents produced by the European Commission, as the internal market
(i.e. its interpretation) seems to exert ever more pressure on the production of correct
subjectivities also by means of private law. The reifying internal market rationality pushes us
all the way from the concept of a person as a self-reliant moral agent, or a week party in a
need of protection, to that of a person whose thinking needs to be reshaped by public
authority in order to contribute to the internal market.51

3.3. Regressive Redistribution

The internal market is an open-ended and on-going project that calls for great efforts in its
establishment. To this end, it needs actors who will carry its goals through. One example of
such an actor is the one -dimensional consumer mentioned above who behaves in a market-
rational (market useful) way if she considers price as the only determinant of shopping
behaviour.
A first, deep, redistributory pattern put in place by a body of law comes about through
designing laws around a dominant model individual or a group (the standard of
evaluation).52 Such model may be anything from a white male, a member of a particular
social class or a mobile actor, but the bias introduced in the legal system in this way will
benefit the model group in both an overt and a covert manner.53
Generally, market integration is considered to be more advantageous to both mobile actors
and mobile capital (a well-educated workforce speaking foreign languages, big businesses,
middle aged as opposed to older people and so on.).54 The advantage enjoyed by such
mobile actors tends to be paid for by those less mobile actors and capital that remain at
home.55 A well-documented example is the CJEUs opening up of national public services
and social systems (education, health, social security) to the mobile actors thereby often

51
As I discuss in part 3.5., this process is resisted perhaps most importantly by the European courts, who rely
on an old (pre-neoliberal) horizontal consumer directive on Unfair Terms in Consumer Contracts so as to
reintroduce the concept of weak consumer and substantive protection in European consumer law.
52
C.A. MacKinnon, Toward a Feminist Theory of the State (Harvard University Press, 1989).
53
Ibid.
54
M. Kumm, 'Constitutionalising Subsidiarity in Integrated Markets: The Case of Tobacco Regulation in the
European Union' (2006) 12 European Law Journal.
55
F.W. Scharpf, 'The Asymmetry of European Integration, or Why the EU Cannot Be a social Market Economy
(2010) 8 Socio-Economic Review.

13

running the risk that such an opening would lead to undermining a public provision of
services in general.56
The question that will interest us here is whether there is a particular model actor behind
the European private law, who she is, and which redistributive pattern this model puts in
place.57 The Commission indeed does not miss a single opportunity to present to us its
image of a market useful consumer.
Empowered consumer choices will have a positive impact on economic growth ()
Consumers who are prepared to change provider of goods and services are a
prerequisite for effective competition between market players. Competition keeps
businesses under pressure and makes them more effective. Consumers who are
active in the market and act consciously foster competition, save money, and receive
better goods and services58.
Regardless of who this competent consumer making informed choices that reward
competition and drive a smart, sustainable and inclusive economy might be, one thing is
certain: s/he is not an uneducated or poor consumer and citizen. As the Commission has
noted, EU empowerment measures miss the weakest consumers:
Redress systems are mostly used by those least likely to suffer detriment; the most
disadvantaged in society who need to improve their skills or need help are less likely
to do so, even if they are aware of their weakness. () Further econometric analysis
of the CEI data shows that poor living conditions and low educational levels are key
factors contributing to low empowerment.59
The normative leitbild of the EPL is, according to Micklitz, a dynamic, open-minded,
flexible, well-informed, self-standing and self conscious mobile worker or consumer who is
seeking the best job opportunities and the best prices on the market of consumer goods and
services so as to reap up the benefits of the internal market. 60 Yet, building the EU
legislation in EPL around this model may lead to an aberrant consequence of regressive
redistribution: the redistribution from poor to rich.61
On the one hand, creating a regulatory framework around more privileged consumers takes
time, space and public money away from actions benefiting other (vulnerable) groups of

56
M. Dougan, 'Fees, Grants, Loans and Dole Cheques: Who Covers the Costs of Migrant Education Within the
EU?' (2005) 42 Common Market Law Review; S. Garben, 'The Belgian/Austrian Education Saga', (Harvard
European Law Working Paper No. 01/2008).
57
For instance, the private law of the EU MS was modelled around a weak or incompetent consumer, worker
or tenant.
58
European Commission, 'Commission Staff Working Document: On Knowledge Enhancing Aspects of
Consumer Empowerment, SWD(2012) 235 Final, 6.
59
Ibid 3,5.
60
Micklitz, Social Justice and Access Justice in Private Law, 17.
61
For a general point on regressive redistributive patterns of EU integration see D. Kukovec, Whose Social
Europe? ( SSRN 2011), and D. Caruso, 'The Justice Deficit Debate in EU Private Law: New Directions', (BU
Law Working Paper 2012).

14

consumers.62 On the other hand, as economic analysis points out, consumer protection
measures are reflected in the price of goods. To the extent that consumer legislation raises
prices, it serves to benefit more privileged consumers at the expense of those less privileged
ones (regressive cross-subsidization).63
The same pattern of regressive redistribution may be observed at the level of policies where
it is widely acknowledged that the EU prioritises information duties. For instance, the last
Consumer Agenda64 consists of sixteen pages, while the Commission Staff working
document on Knowledge enhancing aspects of consumer empowerment runs to a mere
thirty-two pages. But even in the Consumer Agenda itself information duties receive
several times more space than vulnerable consumers for example. The concern for
providing information is unshakable by any counter-arguments. For instance, to the extent
that the findings of behavioural economics are considered, they are presented as new
challenges and areas for improvement.65
Yet, the stress on information duties benefits a particular kind of consumer - a consumer
who can take on board, process and react to the information received. For less educated,
weaker or poorer consumers, those measures are largely ineffective.66 Prioritising
information duties again disadvantages weak consumers twice on the one hand, the
information duties are prioritised and financed instead of consumer policies that may
benefit weaker consumers, while at the same time this leaves them having to pay a higher
price for consumer legislation they cannot benefit from.67 Despite a considerable criticism
from the side of scholars or consumer associations, the Consumer Rights Directive is for
instance still mainly about information duties. With the reification of the internal market
rationality, market concerns (in this case market transparency) has become a central
concern, making the Commission deaf to the arguments regarding its effects on consumers
interestingly, disregarding the side of the political spectrum from which they may be said
to originate.68
There is, however, one concept in the European private law that could be a more systematic
instance of a progressive redistribution. Thus, some authors believe that the concept of

62
Micklitz, Social Justice and Access Justice in Private Law.
63
O. Bar-Gill, O. Ben-Shahar, 'Regulatory Techniques in Consumer Protection: A Critique of European
Consumer Contract Law' (2013) 50 Common Market Law Review.
64
European Commission, 'A European Consumer Agenda - Boosting Confidence and Growth, COM(2012) 225
Final.'
65
European Commission, On Knowledge Enhancing Aspects of Consumer Empowerment.
66
BEUC, 'EU Consumers 2020 Vision', accessible at
th
http://taenk.dk/sites/taenk.dk/files/beucvisionbrochure_en.pdf (last visited 6 October 2013). See also G.
Howells, 'The Potential and Limits of Consumer Empowerment by Information'.
67
In private law, the reification of the internal market rationality has been marked by a shift away from a more
substantive protection the 80s and early 90s, to European private law based on formal, procedural and access
rights more recently.
68
Micklitz, The Expulsion of the Concept of Protection from the Consumer Law and the Return of Social
Elements in the Civil Law.

15

vulnerability could indeed present such a game changing concept - in particular, if it is
linked to the concept of affordability as is the case of the former public utilities.69
While its systematic elaboration is beyond the scope of this paper, an examination of one
crucial sector - energy regulation - reveals that the regulatory mixture of vulnerability and
affordability presents only potential gains so far. The concept of affordability in public
utilities remains linked to the idea of effective competition. If there is such competition, the
price is affordable. The concept itself is tautological. Those consumers that cannot afford
reasonably priced energy (market price), may be helped in the framework of vulnerability
measures.
The third energy package then defines the obligations of Member States (MS) toward
vulnerable consumers in the following way. The MS are obliged to

define the concept of vulnerable consumer
prohibit the disconnections of vulnerable consumers in critical times
ensure the transparency of contractual terms;
ensure that an independent dispute settlement mechanism is put in
ensure a single point of contact for any problems consumers might face.70

It is striking that the only substantive obligation toward vulnerable consumers is the
prohibition of disconnection in critical times. Even in this case, EU regulation does not go
beyond the British model - where two elderly persons paid with their lives before the OFT
license conditions were changed which is not in the premises very far.71 As for the rest, we
are again in the (safe) haven of providing formal rights of access, the transparency of
contract terms, contact points or dispute settlement mechanisms measures which are less
than ideal (as the Commission itself notes) for addressing the needs of vulnerable
consumers. To the extent that MS are encouraged to take measures to protect vulnerable
consumers, they are instructed to rely on social protection systems or energy efficiency
improvements, provided they do not harm the openness of the market.72
Measures that are potentially more effective for ensuring the affordability of energy supply
- such as social tariffs or default tariffs - do not appear as conceivable alternatives in the
cognitive framework of the internal market rationality. They rely on a political, as distinct
from a market redistribution, which seems to have ceased to be a viable alternative. Yet, as

69
H.W. Micklitz, Universal Services: Nucleus for a Social European Private Law (European University Institute,
2009).
70
Bartl, The Affordability of Energy.
71
Ibid.
72
Art 3/8 of Dir 72/2009.

16

a recent Bulgarian case shows,73 political intervention and redistribution may be at times
crucial for the socially just provision of such services.74
Thanks to the gradual reification of internal market rationality (the accumulation of
knowledge exalting the benefits of competition, while discounting the alternatives), we may
give up the tools to ensure a socially just provision of these public services. This is
particularly worrisome for the crisis-hit Member States, which are often required to
liberalise markets and privatise public utilities as a part of their economic recovery
programmes; yet, with few guarantees that privatisations will be balanced by a framework
for a socially just provision of these existential services.
In sum, the reification of internal market rationality increases the threat of regressive
redistribution in European private law. We observe this trend on the systemic level, with the
augmented reference to the model actor on which the recent initiatives in European
private law rely. We note this tendency at the level of policies, which are increasingly
focused on achieving market integration objectives. The reification of internal market
rationality is finally then particularly hazardous if it blocks the channels of political
redistributive action in those fields where the provision of services is an essential
requirement for social inclusion.

3.4. Justice as Access to the Markets

The conception of justice in private law has changed considerably over the past centuries.
The classical contract law was founded on the idea of commutative or corrective justice,
justice between parties. This type of justice is said to focus on the relationship between the
parties to a contract, disregarding the social context in which the relationship is
embedded.75 A second transformation comes with the so-called social private law, which
broadens the spectacles of justice so as to consider contractual relationships in its broader
socio-economic context (social justice). For this reason, social private law has been blamed
for the instrumentalisation of private law for wider social purposes: the correction of market
inequalities or the materialisation (de-formalisation) of private law, which takes into
account particular material circumstances of contract parties.76
The transformation of private law by the EU transcends the previous two stages in a twofold
manner it instrumentalises private law for a particular formal goal: the building of a

73
Tens of thousands of Bulgarian citizens have protested against the raise of market energy prices, which
sometimes became higher than the monthly income of Bulgarian pensioners. See for instance
http://www.reuters.com/article/2013/02/17/us-bulgaria-protests-electricity-idUSBRE91G0C520130217 (last
visited 4th October 2013).
74
A controversy regarding the appropriate way to regulate energy prices has not escaped the attention of the
old member states either. See http://www.theguardian.com/business/2013/sep/25/shares-energy-firms-
miliband-energy-price-freeze (last visited 4th October 2013).
75
For a contemporary example see E.J. Weinrib, Corrective Justice (OUP, 2012).
76
M. Weber, Economy and Society, New Ed (University of California Press, 1992), 666ff.

17

market. This is different to the period of the classical private law, whose formality is linked
to the formal understanding of equality and corrective justice. It is also a departure from the
period of the social private law, which instrumentalises private law for material goals, de-
formalising and re-embedding the market.
At the same time, justice in European private law abandons the materialisation understood
as taking into account a particular context of a contractual relationship. Instead, it re-
formalises private law by creating new average groups and by stressing procedural rights
rather than substantive protection. In different words, European private law aims to deliver
justice to everyone by ensuring competition, jobs, low prices and greater choice.
The concept of justice in European private law encompasses however a different concern
namely the issue of market access.77 Access justice is a concept of justice, which merges the
liberal concern with the equality of opportunity with the concern for well-functioning
markets. While rhetorically not leaving anyone behind, it contributes to the internal
market, which needs many participants to keep it going. Ideally, all consumers should be
confident consumers reaping internal market benefits, part of the mobile workforce
moving flexibly where market needs are, or learning skills that market requires.78
What makes the concern with access complementary to the concern for the market is that
the access justice is essentially a procedural device that endorses a hands off approach
from the market itself. As Somek observes, what matters is that nobody is barred from
availing oneself of an opportunity while it is taken for granted that the existence of the
opportunity itself does not raise any questions of justice.79
In the European private law, the concern with access is to be found explicitly in the former
public utility sectors, such as telecom, gas, electricity, postal services, public transport.80 A
second source of the access justice in EPL is a horizontal dimension of the principle of non-
discrimination present across the sale of goods, provision of services, or labour market.81
Finally, access justice offers the justification for the transformation of individuals so as to
become useful internal market participants (discussed in part 3.2.), since it is their market
competence that ensures they have access to the market and thus to the only kind of
private justice on offer.

77
H.W. Micklitz, Social Justice and Access Justice in Private Law (EUI Working Paper 2011); A. Somek, 'From
Workers to Migrants, from Distributive Justice to Inclusion: Exploring the Changing Social Democratic
Imagination,' (2012) 18 European Law Journal.
78
M. Keune and M. Jepsen, Not Balanced and Hardly New: The European Commissions Quest for Flexicurity
(ETUI-REHS, 2007). Available at http://library.fes.de/pdf-files/gurn/00281.pdf (last visited 6th Oct 2013).
79
A. Somek, 'From Workers to Migrants, from Distributive Justice to Inclusion'.
80
P. Rott, 'A New Social Contract Law for Public services?Consequences from Regulation of Services of
General Economic Interest in the EC,' (2005) 1 European Review of Contract Law.
81
Micklitz, Social Justice and Access Justice in Private Law.

18

With the progressing reification of internal market rationality we have seen a mounting
stress on the market as a main allocatory (distributive) mechanism.82 This is noticeable in
former public services, where the regulator is increasingly distrustful toward political
redistribution, or in the building of the online internal market, which has been a main goal in
recent European private law initiatives. Access to markets then becomes a main social
device in the framework of internal market rationality. The question remains however
whether this kind of justice does not remain somewhat too thin.

B Resistance to the Transformation of Private Law

Changing the rules of the game in (European) private law has not remained, at least
implicitly, without a challenge. Perhaps the most important counter-movement has come
from courts, both national and European. On the one hand, the courts have relied on an
older horizontal directive on Unfair Terms,83 which offers substantive protection (as
opposed to procedural rights) to European consumers so as to counter some of the
formalising transformative pressures.84 On the other hand, the national courts as the main
enforcers of EU law have often remained normatively grounded in their national private
laws rationalities, which has had a significant impact on the way they interpret European
private law.85
Secondly, and somewhat more surprisingly, the resistance has found its way directly to the
drafting of European private law. National private law scholars, who were asked by the
European Commission to draft the Common European Sales Law, have inevitably remained
anchored in their national private law paradigms, importing a different concept of a person
or a different concept of justice into this European instrument. Finally, a significant
resistance to some of the Commissions efforts has come also from the European
Parliament, which has paid significant attention to the interests of consumers vis--vis
European businesses,86 while the most articulated dissent to some of these transformations
has come from legal scholarship.87

82
See Also G. Comparato, H. Micklitz, Regulated Autonomy between Market Freedoms and Fundamental
Rights in the Case Law of the CJEU, in F. Schulyok, U. Bernitz, and X. Groussot, General Principles of EU Law
and European Private Law (Kluwer Law International, 2013).
83
Unfair Terms Directive 93/13/EEC.
84
For an overview of the recent case law of the Court of Justice of the EU, including further development of
the concept of weak consumer by the Court, see H.-W. Micklitz and B. Kas, Overview of Cases before the
CJEU on European Consumer Contract Law (20082013)Part I, (2014) European Review of Contract Law; H.-
W. Micklitz and B. Kas, Overview of Cases before the CJEU on European Consumer Contract Law (2008
2013)Part II, (2014) European Review of Contract Law.
85
R. Manko, Weeds in the Gardens of Justice? The Survival of Hyperpositivism in Polish Legal Culture as a
Symptom/Sinthome, (2013) Plemos Journal of Law, Literature and Culture.
86
The lowering of consumer protection has been one of the major reasons for the refusal of the 2008
Commissions proposal of Consumer Rights Directive.
87
To mention just the few Ch.U. Schmid, Die Instrumentalisierung Des Privatrechts Durch Die Europische
Union: Privatrecht Und Privatrechtskonzeptionen in Der Entwicklung Der Europischen Integrationsverfassung,
(Baden-Baden, 2010); H.W. Micklitz, 'Social Justice and Access Justice in Private Law', (EUI WP Law 2011/02);

19

While this resistance has been of crucial importance for weakening the transformative
pressures and slowing down the makeover of private law, it has remained unavoidably
piecemeal, unorganised, and hardly sufficient to respond adequately to the new rules of
the game introduced at the meta level. Moreover, as I discuss in part IV, both the EU
political institutions and many stakeholders, who struggle for their interests, values or
argue about the redistributive impacts of Commissions proposals, at the same time
sanction the meta transformation of European private law on which these proposals draw.
They thus directly contribute (even if unintentionally) to the reification of political action in
European private law. Of course, these actors are only partially to be blamed. The reification
of political action may be ascribed in part also to the functionalist legal and institutional
structures, in which the European private law debate takes place.

IV. THE MECHANISMS OF REIFICATION OF INTERNAL MARKET

RATIONALITY
Thus far we have discussed the processes of reification of political action in the EU,
emerging in the interplay between the EU functionalist legal-institutional design and the
current ideological constellation. In part 2 we have discussed the processes of reification of
internal market rationality on a theoretical and macro-institutional level, while in the part 3
we have analysed the impact of reification of EU political action on a substantive field of
law.
We turn now to examine one unintentional consequence of functionalist institutional
design, which has hampered the democratisation of the EU qua political institutions. In
particular, we will discuss how a functionalist design of the EU impacts the self-
understanding of EU political institutions and processes.
To do so we will scrutinize how the medium range goals88 are set in the EU, and European
private law in particular. This question will allow us to understand how a general political
impulse, such as that presented by Lisbon strategies, translates into political action in the
EU. At the same time, this will allow us to examine the role played by the EU institutions and
comprehend the mechanisms and consequences of replacing the political debate by
formalised cognitive structures (assumptions). In other words, we will look at the processes
of reification of internal market rationality in action.

G. Brueggemeier et al., Social Justice in European Contract Law: A Manifesto,' (2004) European Law Journal,
H. Collins, The European Civil Code: The Way Forward (Cambridge University Press, 2008); D. Caruso, 'The
Justice Deficit Debate in EU Private Law: New Directions' (BU Law Working Paper 2012), Martijn Hesselink,
European Contract Law: A Matter of Consumer Protection, Citizenship, or Justice?, SSRN Scholarly Paper (SSRN,
2006).
88
The concept of medium range goals will refer to those goals that may be perceived as internal to the main
EU objectives (e.g. the internal market), yet they present their major interpretations. More generally, this
paper abandons an essentialising understanding of EU objectives. The internal market on its own mandates
little. What we need to uncover are the mechanisms in which such needs of the internal market are
established.

20

4.1. The Role of the European Commission: Why We Need the
Politicisation of Goals in the EU.
Until the beginning of the 2000s, private law in the EU was a system based on two different
rationalities, revolving around different objectives and different values. On the one hand,
most member states endorsed protectionist private law,89 modelled around weak and
incompetent parties and a concern for social justice. On the other hand, European private
law was organized mainly around market-useful actors and market-building purposes. The
coexistence of these two rationalities was made possible by minimum harmonization, in
which the member states had to respect minimum EU standards but could also go above
those standards and pursue different normative concerns.90
Even if the member states protectionist rationality has been dented continually by the
Court of Justice of the EU (hereafter CJEU) and its concept of average consumer,91 a frontal
attack occurred only at the time of the minimax debate, shortly after the 2000 Lisbon
Strategy. The commitment to become the worlds most competitive knowledge economy
made the Commission impatient with the different rationalities of member states. Legal
diversity in private law was therefore framed as a problematic fragmentation, which harms
the internal market and the solution is full harmonisation, or a full transfer of powers over a
large body of private law to the EU.92
In the recent year, the Commissions goal has become more specific. In particular, the main
justification for the harmonisation efforts most notably for the Consumer Rights Directive
(CRD) and even more strongly the Common European Sales Law (CESL) was the need to
create the online internal market. The importance of online internal market has grown
over time, becoming even an instrument that should boost economic growth and help the
EU out of the economic crisis.
Consumer expenditure accounts for 56 % of EU GDP and is essential to meeting the
Europe 2020 objective of smart, inclusive and sustainable growth. Stimulating this
demand can play a major role in bringing the EU out of the crisis. To make this
possible, the potential of the Single Market must be realised. Data show that
consumers shopping online across the EU have up to 16 times more products
from which to choose, but 60 % of consumers do not yet use this retail
channel. As a result of this reluctance, they do not fully benefit from the variety of
choice and price differences available in the Single Market. Improving consumer
confidence in cross-border shopping online by taking appropriate policy
action could provide a major boost to economic growth in Europe. Empowered

89
Even though the Court of Justice has significantly curtailed the capacity of the Member States to protect
below average consumers. See Unberath and Johnston, The Double-headed Approach of the ECJ Concerning
Consumer Protection.
90
H. Schulte-Nolke, Ch. Twigg-Flesner, and M. Ebers, eds., 'EC Consumer Law Compendium - Comparative
Analysis' (University of Bielefeld, 2008).
91
Unberath and Johnston, The Double-headed Approach of the ECJ Concerning Consumer Protection.
92
H.W. Micklitz, The Targeted Full Harmonisation Approach: 13 Looking Behind the Curtain, 2009.

21

 and confident consumers can drive forward the European economy.93

If measured by the significance and the role that the online internal market plays for the
justification of harmonisation efforts in this field of law, but also in broader terms of
addressing the economic growth in the times of crisis, we would expect a correspondingly
robust political debate about the merits of the all-important goal. Thus how was this goal
set? Who participated in this goal-setting process and how? How does the online internal
market relate to economic growth or the macro-political endorsements of
competitiveness?
The Commissions rationale for the online internal market can be characterised as
perfunctory. Since we need economic growth, we need to boost the internal market, and
thus also the internal online market. The positive correlation, for instance, between the
economic growth and the online internal market is assumed. Yet, even on these terms, is
there really nothing to be questioned, and is the online internal market truly such a win-
win option for smart, inclusive and sustainable growth?
While the Impact Assessment accompanying the CESL concentrates on the savings for
businesses that come from harmonisation of the relevant body of law undertaken to realise
the online internal market, it presupposes the benefits of the goal itself. The Impact
Assessment devotes two paragraphs to the social and environmental impacts of
harmonisation. With regard to the social impact of the measure, the Commission claims that
the harmonisation through the Optional Instrument may create between 650,000 and
1,300,000 new jobs, while it concedes that increased delivery will incur some environmental
costs.94
One may wonder whether those conclusions even from the perspective of economics - do
not warrant some debate. Is it not possible that online shopping is in fact less labour
intensive than its high street alternative? How many jobs will be created and how many lost
through the public support of the online internal market? Investing public funds into retail
economies of scale (such as Amazon), which rely extensively on technologies and less on
people, may in fact undermine the EU economic objectives of recovering economic growth,
employment and strong demand.
The second question concerns the existence of non-economic normative concerns, which
may be affected by the online internal market. The Commission devotes one paragraph to
the negative environmental impact of online shopping. The Commission only admits to
increased transport as a possible cost of harmonisation (and implicitly the online internal

93
European Commission, A European Consumer Agenda - Boosting confidence and growth, COM(2012) 225
final, 2.
94
European Commission, the Impact Assessment on the Common European Sales Law, SEC(2011) 1165
final, 47.

22

market), but this cost is easily dismissed without engaging in any argumentation. The
Commission does not mention other, rather obvious, environmental costs. Anyone who
orders a product online cannot fail to see that online shopping comes with double or triple
packaging, an immediate environmental cost of this type of consumption. Packaging is
linked to the problem of overproduction of waste on the one hand, and the overuse of
natural resources on the other (wood, fuel, water). Yet the environment seems to have little
weight when it is in competition with the online internal market, which in the eyes of the
Commission is the incarnation of economic growth without a need to establish this link.
Yet, the environment is not the only normative concern that will be impacted by investing
public funds into the online internal market. What will be, for instance, the impact of online
internal market on urban life something that fundamentally influences the quality of our
life and our free time? What will the impact be on our actual possibility to go to the centre
of any city and visit a bookshop, sports shop etc.? Shall we invest further public funds to
speed up the emptying of the cities?95
Online shopping normally presupposes armchair shopping. Is this desirable from the public
health perspective? What about the effects of OIM on physical and mental health, obesity,
lack of movement or the social isolation of individuals?96 The isolation of individuals is
indeed worrisome also from democratic perspective it impedes the interactions, which are
fundamental for the public sphere, and perhaps also the European public sphere.
These normative concerns are not recognized by the Commission when thinking about goals
of European private law, even if they are impacted by the impending harmonisation. If the
internal market integration and liberalisation is always positive, since it is indiscriminately
about economic growth (itself endorsed at the macro political level), then other normative
concerns cease to exert much normative guidance in the regulation of the internal market.

4.3. Consultation Procedure

While the reificatory pressure from the side of the European Commission may be strong, it
cannot be carried further if there are other political instances where the Commissions
assumptions are questioned. One of such institutional spaces for questioning the desirability
the online internal market could be the consultation procedure. The Treaty of Lisbon (and
Constitutional Treaty beforehand) places a great hope in participatory democracy as means
to democratise the functioning of the European Commission (Art. 11 TEU).
Both Common European Sales Law and the Consumer Rights Directives were built on several
years of discussion with the stakeholders. For each of the measures we have seen large-

95
Granting public support to online shopping may undermine//// the influential New Urbanism
principles. See http://www.cnu.org/.
96
An ongoing heated debate concerns the impact of new technologies on the level of social isolation of
individuals. Compare for instance the Stanford-based authors I. Stepanikova, N. H. Nie, X. He, Time on the
Internet at Home, Loneliness, and Life Satisfaction: Evidence from Panel Time-diary Data, (2010) 26 Computers
in Human Behavior, with Pew's Institute study by K.N. Hampton, L. F. Sessions, E. Her, L. Rainie, How the
internet and mobile phones impact Americans social networks (Pew Institute 2009).

23

scale public consultations in Green Papers (2007 and 2010), complemented by separately
organised workshops, conferences, meetings and so on. On the one hand, the consultations
were supposed to lead to a measure of high quality drafting, and on the other, a high level
of participatory legitimacy, by opening the EU and its cognitive framework to voices from
the outside for both epistemic and normative reasons.97
A closer degree of scrutiny reveals, however, that the Commission has framed the
consultation procedures in European private law in a way that prevents a democratically
relevant discussion about goals from taking place. First of all, the consultations do not open
the debate regarding the objectives of harmonisation. Those goals were posited in the
consultation documents, and the Commission asked essentially for more information with
regard to their successful implementation.98 Secondly, the consultations were framed in a
narrow way,99 both with regard to the constituency the consultations aim to address (direct
interests) as well as the breath of issues being asked (they are too field specific).100 Official
consultation procedures have certainly not designated to play a role in discussing the
broader implications of EU action or setting the goals of the European private law.101

4.4. The Role of the European Parliament

The follow up question is whether political institutions, such as the European Parliament,
have provided the space for the democratic politicisation of the online internal market. In
particular, the European Parliament has successfully opposed the first version of the
Consumer Rights Directive, finally adopting a considerably narrower version directed mainly
at online purchases.
If we examine, however, the debate regarding the Consumer Rights Directive, it seems to
have revolved around minimum and full harmonisation and the level of protection and the
scope of this directive. In this debate, the goal of online internal market has been, at best, a

97
The Better Regulation agenda considers consultation to be important for both epistemic and
democratic reasons. See eg European Commission's European Governance: Better Lawmaking, COM (2002)
275', or Smart Regulation in the European Union, COM(2010)543'.
98
European Commission, 'Green Paper on the Review of the Consumer Acquis, COM (2006) 744 Final.
or 'Green Paper of the Commission on Policy Options for Progress Towards a European Contract Law for
Consumers and Businesses COM (2010) 348 final.'
99
Bartl, Legitimacy and European Private Law, EUI Thesis (SSRN, 2012). Accessible at
http://cadmus.eui.eu/handle/1814/22455.
100
Such as, how to review and improve the existing EC legislation in the area of contract law?
(COM(2001)0398)Or what to do with the Expert Group instrument? (COM(2010)543) The questions
presuppose an internal perspective on European private law, and do not encourage public debate beyond
bargaining among the direct interests (businesses and consumers in the case at hand).
101
It has been alleged that industry has a constitutive role in shaping the Commissions (and thus the
EUs) goals and policy objectives. Evidence has been presented in numerous forms, when one of the most
effective has been a documentary Brussels Business, accessible at ARTE TV, at
http://brusselsbusiness.arte.tv/fr/film.

24

proxy for European added value,102 while parliamentarians have not questioned the
assumptions that buttress this goal.103 Furthermore, EU citizens were reduced to consumers
and businesses in this debate, even by the political left,104 while other categories such as
employees or publicly minded citizens (concerned with environmental, social or ethical
consequences of the online internal market) have not been considered at all. In this
constellation, Les Verts are more concerned about the length of the withdrawal period,
while not noticing the possible environmental consequences of the online internal market.
The single issue that transgressed the narrow framework set by the Commission was the
question of the inclusion of social, health and gambling services within the scope of the
directive.105
The debate surrounding the Common European Sales Law offers even less grounds for
confidence. The proposal has been discussed first by two Parliamentary committees, and
both recommended its adoption (with amendments).106 The Legal Affairs Committee, which
was responsible for the proposal, has organised several workshops in order to discuss
various substantive elements of the proposal. It has engaged with numerous European
private law scholars, the representatives of businesses and consumers as well as the
representatives of the European Commission. 107 Whereas the Committee replicates the
Commissions direct interests consultation and the disciplinary narrowness of consulted
scholars (private lawyers), its final report entirely ignores the broader impacts of the goal
pursued (environmental, social or economic) or the constituencies beyond consumers and
(small) businesses.108
The Internal Market and Consumers Committee has been more sceptical of the proposal,
approving by a relatively tight vote.109 The two main objections of the Committee were, first,
the optionality of the CESL, which is not suitable for consumer affairs and second, the
quality of the Commissions Impact Assessment.110 The Committee has criticised the
methodology for the calculation of transaction costs, which seriously detract from the

102
The Plenary Debate in the European Parliament on the Consumer Rights. Accessible at:
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+CRE+20110323+ITEM-
020+DOC+XML+V0//EN&language=EN [Speech Raffaele Baldassarre, on behalf of the PPE Group]
103
Ibid.
104
Ibid. [Speech Emilie Turunen, on behalf of the Verts/ALE Group].
105
See ibid. [Speech Kyriacos Triantaphyllides (on behalf of the GUE/NGL Group)].
106
European Parliament Legal Affairs Committee, Minutes JURI_PV(2013)0916; European Parliament
Internal Market and Consumers Committee, Minutes IMCO_PV(2013)07-08-1.
107
European Parliament, Committee on Legal Affairs, Minutes: JURI_PV(2012)03-01-1, JURI_PV(2012)05-
30-1 or JURI_PV(2012)07-09-1.
108
European Parliament, Committee on Legal Affairs, Report on the proposal for a regulation of the
European Parliament and of the Council on a Common European Sales Law (COM(2011)0635 C7-0329/2011
2011/0284(COD)).
109
The decision was taken by twenty two votes in favour, seventeen votes against and one abstention.
See the Internal Market and Consumers Committee, Minutes, IMCO_PV(2013)07-08-1.
110
European Parliament, Internal Market and Consumers Committee, Opinion on the proposal for a
regulation of the European Parliament and of the Council on a Common European Sales Law (Brussels, 11 July
2013) IMCO_AD(2013)505986.

25

meaningfulness of the impact assessment and call into question its value.111 Yet, while the
critique of impact assessment could have offered space for the politicisation of the
assumptions behind the proposal and the goal that moves it, this has not been the case. The
Committees substantive critique has remained restricted to the optionality of the
instrument, and it has side-lined any debate regarding the broader social or economic
consequences of the goal that underpins this proposal.112
In February 2014, the Parliament finally accepted the amended proposal for the Common
European Sales Law, as drafted by the Committee on Legal Affairs. The general debate has
brought forward few new arguments with regard to the goals of European private law: the
discussion remains limited to whether the proposal is able to achieve the online internal
market, and how advantageous (or not) it is consumers.113 Until the very end, the Parliament
has mechanically accepted the framing of the issue: the lack of online internal market was
regarded as an obstacle to the completion of the internal market. In both cases, thus, the
Parliament has mechanically accepted the framing of the issue: the lack of online internal
market is regarded as an impediment to internal market, which is an impediment to
economic growth. The debate in the Parliament has remained limited to the question
whether the Commission has devised proper means to achieve what it has set out to
achieve, and whether the correct balance between consumers, businesses and SMEs is
struck by the proposed measure. The online internal market itself is perceived as a natural
continuation of the internal market or, to reiterate Economic and Social Committee, as the
consolidation of the internal market.114
Is this all we can expect from the postnational democracy?115
Why do MEPs not inquire into the environmental or social costs of the goal, or even the
measure? Is it so clear that environmental costs revolve only around transportation, and
that jobs will only be created and not destroyed? While the Internal Market and Consumers
Committee has objected to the quality of the Impact Assessment, it has done so without
politicising it. It has pointed out the insufficiency of Commissions methodology, without
bringing to the light and discussing the underlying these essentially political questions.
The functionalist legal-institutional design changes the self-understanding of the European
Parliament, bringing its operation closer to the executive rather than genuinely legislative
tasks. If the Parliament finds its role somewhere, it is to protect the citizens (weaker parties)
in the implementation of goals, in which neither the Parliament nor the EU citizens have

111
Ibid, 2.
112
Ibid.
113
The Parliamentary debate is accessible at:
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+CRE+20140226+ITEM-
004+DOC+XML+V0//EN&language=EN (last visited 24th June 2014).
114
European Economic and Social Committee, Opinion on the Common European Sales Law, CESE
800/2012 - INT/600.
115
For the analysis of the democratic consequences of the reification of internal market rationality see
M. Bartl, The Way We Do Europe, European Law Journal.

26

much say. The Parliament so readily consents to the assumptions that support the goal of
online internal market: acknowledging that there is only one route for political action,
accepting the Commissions simplistic vision of the world where internal market integration
and economic growth (if this is in the end the ultimate goal) neatly correspond to each
other, accepting the concept of person, justice and regressive redistributive pattern at a
meta level, while focusing all its attention to small gains and losses of the European
consumers. By failing to problematize these assumptions, the European parliament
contributes to the reification of political action in European private law.

4.5. The Role of the Council of European Union

The Council has discussed the Consumer Rights Directive on several occasions. It has
focused on the question of full harmonisation and the balancing of interests between
traders and consumers in the online internal market.116 The online internal market, which is
for the European Commission a tool to boost economic growth, was understood by the
Council as an unavoidable consequence of technological progress.117 Yet, puzzlingly, this
inescapable endpoint of the historical trajectory still deserved to be legislatively assisted by
nothing less than the full harmonisation of contract law.118
In case of the Common European Sales Law, the Council was invited to consider the legal
basis, the capacity of the proposed Common European Sales Law to achieve the internal
market objectives and the scope of the measure.119 In the policy debate, the Council has
failed to investigate broader implications of the online internal market - how it impacts on
other EU goals, interests and concerns, or the constituencies beyond consumers (such as
employees, or citizens with their environmental, social and ethical concerns).
What is more, it seems that the online internal market is not intended to be the order of the
day also in the future discussion: the Council has turned to discuss the content of the
proposal. But even if the more contentious question of legal basis would not be left aside,120
the only question that it legally mandates is to ask whether the online internal market, and
its expression the Common European Sales Law, are an internal market issue,121 which they
apparently are. The anticipated debate on the legal basis of the CESL will, at best, test the
effectiveness of the proposal to achieve the (online) internal market.

116
Council of the European Union, 2982nd Council meeting, Brussels, 3-4 December 2009, Press release,
9. Accessible at: http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/intm/111732.pdf.
117
Ibid, 9.
118
Councils general approach to consumer rights counts with full harmonisation of online transactions.
rd
Council of the European Union, 3063 Council Meeting, Brussels 24 Jan 2011.
119
Council of the European Union, 3172nd Council meeting, Brussels, 7 - 8 June 2012, Press release, 20.
Accessible at http://europa.eu/rapid/press-release_PRES-12-241_en.htm?locale=en.
120
Ibid.
121
The EU Court of Justice has pronounced on this issue in a famous Tabacoo advertising line of cases.
For the critique of the idea of purposive competences in the EU legal order see Davies, Democracy and
Legitimacy in the Shadow of Purposive Competence.

27

The debate in the Council therefore remains anchored in the functionalist division of labour.
The guardian of the EU interest (the European Commission) illuminates what the EU
interests are, while the Council focuses on the effectiveness of particular proposals to give
effect to EU goals, which however were previously articulated by the European Commission
itself. Similarly to the European Parliament, the Council thus contributes to the reification of
political action, and the elimination of political alternatives, in European private law-making.

V. CONCLUSION
The lack of politicisation of EU goals may have far-reaching consequences for the
democratic mobilisation in the EU. If the reification of political action forecloses the
emergence of political controversy vis--vis much of the internal market day to day
business, it may prepare grounds for the antagonistic122 politicisation of the EU at more
extreme ends of the political spectrum.123 Such tendency could have been identified already
in a rather narrow politicisation of the EU in recent years, focusing foremost on the issues of
immigration (free movement of persons): be it a Polish plumber at the background of the
Constitutional Treaty and the Services Directive or a social services abuser condemned at
the end of the transitory period for Romanian and Bulgarian citizens.124
This paper has elaborated on the legal, institutional and ideological preconditions, which
enabled the depoliticisation of Internal market through the reification of EUs internal
market rationality. At the same time, by exposing some of those mechanisms that stifle
political action in the EU, the article has suggested the path for an institutional change. I
have argued, first, that the processes of postnational juridification constrain the language in
which policy debate in the EU is conducted. This constraint is further reinforced by the
system of functional competences, which grant the EU the right to act.125
Second, the possibility for reification of political action stands and falls on the existence of
an institutional framework where normative objectives and knowledge that underpins them
can be problematised. This is where the EU functional institutional design has done the
most harm. I have discussed two such institutional arrangements. On the one hand,
assigning the agenda-setting role and the guardianship of the EU interest to a technocratic

122
While in agonistic politics the participants recognize that their opponents generally hold legitimate
views, the antagonism seeks instead the destruction of the other. Typical for various discriminatory political
strategies, antagonism relies on judging their opponents in moral (good evil) rather than political terms. See
Ch. Mouffe, The Democratic Paradox (Verso, 2000), 102.
123
In a recent article, Green Pedersen argues that the EU, extensively politicised by extreme parties,
remains uninteresting for the majority of the mainstream political parties in the EU. Yet, it is only those
mainstream parties that are able to spur a meaningful politicisation and secure the mobilisation of larger
numbers of EU citizens around the European issues. He sees the reason for this level of disinterest as being the
lack of a left-right distinction in EU decision-making and the way in which the EU issues are framed both at
the European and national level. Green- Pedersen Ch. Green-Pedersen, A Giant Fast Asleep? Party Incentives
and the Politicisation of European Integration, (2012) Political Studies.
124
Ibid.
125
Davies, Democracy and Legitimacy in the Shadow of Purposive Competence.

28

institution has depoliticised the production of knowledge in the EU. The European
Commission has often framed salient political issues as technical, marginalising thus the
political dimension of knowledge, while the need for technocratic legitimation has fuelled
Commissions enthusiasm for economic (cost-benefit) analysis. On the other hand, the
subsequent reforms of the European governance (e.g. the empowerment of the European
Parliament) have failed to bring sufficient democratisation qua politicisation in the EU. The
functionalist institutional design frames the self-understanding of the EU political
institutions very differently from their counterparts in the EU member states. As the case of
online internal market shows, the EU political institutions often see themselves as called
upon to discuss the means (how effective a certain piece of legislation is, or eventually the
distribution of gains and losses within a given legislative framework), while they remain
deferential as regards the interpretation of EU goals themselves.126
Third, while establishing the Communities as an entity of functional economic integration
may have impelled a certain proclivity toward those ideas that were harmonic with the
rationale of the EU integration, this predisposition could have come to fruition only in
favourable ideological circumstances. Such an opportunity arose with a growing prominence
of neo-liberal ideas. This body of thought has offered a relatively coherent set of ideas
harmonic with a thin set of causal and normative beliefs behind the EU integration, while at
the same time they presented a compelling justification for the impending growth of EU
powers through marketization.
The reification of political action in the EU has not remained without consequences also for
the content of European law, as I show through the example of European private law. While
reinforcing private law as an instrument of privatization, the EU has transformed the very
idea of private law. The new social contract for European private law is based on a
different understanding of the relationships between the individual, society and the market,
and their respective roles and hierarchies.
The relevance of the theoretical framework proposed here for the broader EU studies
deserves some mention. I contend that, in the fields where the internal market rationality
operates, we should expect the convergence on elements that marked the transformation
of private law. In particular, we may see the convergence on output legitimacy and values,
the regressive patterns of redistribution, the change (reduction) in the concept of justice as
well as a shift in the understanding of a subject. Moreover, we should expect a gradual
acceleration of the transformative pressures along with the reification of the internal
market rationality.

126
This is also to say that those actors (and ideas) that succeed to capture the Commission intellectually
have a considerable power over the EU law making. See for instance Brussels Business, accessible at ARTE TV,
at http://brusselsbusiness.arte.tv/fr/film. Also M. Green Cowles, J. A. Caporaso, and Th. Risse-Kappen,
Transforming Europe: Europeanization and Domestic Change (Cornell University Press, 2001), 163, or A. Baker,
Restraining Regulatory Capture? Anglo-America, Crisis Politics and Trajectories of Change in Global Financial
Governance, (2010) 86 International Affairs.

29

Further empirical inquiry would be necessary to ascertain the level of radiation of internal
market rationality outside the internal market, to fields where other normative concerns
should dominate. Such an influence on the part of the internal market rationality may come
by means of reliance on a body of knowledge accumulated so as to give meaning to the
internal market rather than by pursuing market objectives directly.127 This knowledge may
operate, for instance, through the use of market techniques to advance different
normative concerns - such as environmental goals in an emissions trading scheme. Another
example is apparent in the field of EU external relations and a recent initiative to engage in
economic integration with the US (Transatlantic Trade and Investment Partnership). Not
only the European Commission, but also the vast majority of the parties in the European
parliament, accepts rather uncritically the assumptions regarding the benefits of further
market integration while offering a deaf ear to a call for a more pluralist economic debate.128
Likewise, many other institutions could be productively analysed in the framework proposed
here. While we have seen a compelling analysis of the role of CJEU from the perspective of
neo-functionalism,129 some newer European institutions such as the European Council or the
European Central Bank,130 are still awaiting similar scholarly attention.
To conclude, this paper has aimed problematise the suggestion that the alleged neo-liberal
bias of the EU is solely a consequence of a broader ideological shift to the neo-liberal
political rationality,131 or the strategy played by the EU institutions.132 Rather, I have argued
that a significant role has been played by the EU functional design, which prepared the EU
to embrace, and hold onto, a broader ideological turn toward the neo-liberal interpretations
of the market. Neither the legislative empowerment of the European Parliament nor the
introduction of new values to the EU Treaties, which have prompted much optimism in legal
scholarship, proved capable of effectively challenging these tendencies. Ultimately, the
critique presented here insinuates both institutional and cultural change (for instance in the
self-understanding of the European parliament) necessary to democratise the EU politics.

127
The normative impact of the export of market techniques has been addressed so far mainly by the
literature engaging Foucaults concept of governmentality. See eg Neale, Organising Environmental Self-
Regulation; K. Mitchell, Neoliberal Governmentality in the European Union: Education, Training, and
Technologies of Citizenship, Environment and Planning D 24, no. 3 (2006); J. H. Haahr and Walters, W.,
Governing Europe: Discourse, Governmentality and European Integration, vol. 24 (Routledge, 2005).
128
M. Bartl and E. Fahey, 'The Postnational Market Place: Negotiating the Transantlantic Trade and
Investment Partnership, forthcoming in E. Fahey, D. Curtin (eds.) Transatlantic Community of Law:
Interactions between the EU and US legal orders (CUP 2014).
129
A. Stone Sweet, T. Lloyd Brunell, The Judicial Construction of Europe (Wiley Online Library, 2004), N.
Fligstein, A. Stone Sweet, Constructing Polities and Markets: An Institutionalist Account of European
Integration1, (2002) American Journal of Sociology.
130
See however an excellent recent contribution by K. Tuori, K. Tuori, The Eurozone Crisis: A
Constitutional Analysis (Cambridge University Press, 2013).
131
This seems to be assumption of many commentators, see for instance the reports of influential
Euromemorandum group at www.euromemo.eu.
132
Jabko, Playing the Market.

30